Why Some Democrats Sat Out Clean Power Plan Court Fight

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By Anthony Adragna

April 6 — Dozens of Democrats, including 10 senators and 27 House members, did not sign onto an amicus brief supporting the Environmental Protection Agency's Clean Power Plan in federal appeals court, according to an analysis from Bloomberg BNA.

Lawmakers gave a number of reasons for not participating. Some said they have a policy of not signing any friend-of-the-court briefs. Others said it was an inadvertent oversight not to join the brief. For some of the Democratic lawmakers, sitting out the court fight is consistent with prior votes opposing the cornerstone of the Obama administration's domestic actions on climate change.

More than 200 current and former lawmakers, predominantly Democrats, told the U.S. Court of Appeals for the District of Columbia Circuit in their brief that the EPA was using its authority under the Clean Air Act to regulate carbon dioxide from existing power plants exactly as Congress had intended .

Bloomberg BNA asked each lawmaker's office multiple times for comment about why they did not sign the brief, which was filed April 1 (West Virginia v. EPA, D.C. Cir., No. 15-1363, amicus briefs filed 4/1/16).

All House Democrats Aware

Each member of the House Democratic caucus received a dear colleague letter, spearheaded by Reps. Frank Pallone (D-N.J.) and Jared Huffman (D-Calif.), encouraging them to sign the amicus brief.

“Our brief will argue that the Clean Air Act was drafted in broad terms to give EPA substantial authority to determine how best to achieve the statute’s objectives and to ensure that EPA can address new air pollution problems as they arise,” the letter states. “The brief will also argue that the Clean Power Plan is consistent with the text, structure, and legislative history of the Clean Air Act.”

Despite this effort, 27 representatives, from districts across the country, did not sign it.

They were Reps. Brad Ashford (Neb.), Sanford Bishop (Ga.), Michael Capuano (Mass.), Yvette Clarke (N.Y.), Lacy Clay (Mo.), Henry Cuellar (Texas), Lloyd Doggett (Texas), Marcia Fudge (Ohio), Tulsi Gabbard (Hawaii), Gwen Graham (Fla.), Ruben Hinojosa (Texas), Marcy Kaptur (Ohio), Ron Kind (Wisc.), Ann Kirkpatrick (Ariz.), Rick Larsen (Wash.), Rick Nolan (Minn.), Collin Peterson (Minn.), David Scott (Ga.), Terri Sewell (Ala.), Kyrsten Sinema (Ariz.), Bennie Thompson (Miss.), Norma Torres (Calif.), Marc Veasey (Texas), Filemon Vela (Texas), Nydia Velázquez (N.Y.), Peter Visclosky (Ind.) and Timothy Walz (Minn).

Why Some Lawmakers Didn't Sign the Amicus Brief

Office of Rep. Rick Nolan (D-Minn.): “The Congressman had some reservations about the brief and ultimately decided to pass on signing it. That being said, he has been generally supportive of the Administration’s Clean Power Plan in the past..”

Office of Rep. Michael Capuano (D-Mass.):“We simply missed the deadline for signing on. The congressman supports the EPA’s Clean Power Plan.”

Office of Sen. Tom Udall (D-N.M.): “Senator Udall has a policy of not signing onto any amicus briefs, so that's why he isn't on this one.”

Some of the defections were expected. Ashford, Bishop, Cuellar, Kirkpatrick, Peterson, Sewell and Sinema supported legislation (H.R. 2042) in 2015 that would allow states to delay compliance efforts until the end of legal challenges and enable governors to opt out of the regulation in certain circumstances. Four of them—Ashford, Bishop, Cuellar and Peterson—then backed a resolution (S.J. Res. 24) to nullify the Clean Power Plan.

‘Simply Missed the Deadline.'

But the offices of other lawmakers sitting out the legal brief said they simply didn't join the brief in time.

“We simply missed the deadline for signing on,” Alison Mills, a spokeswoman for Capuano, told Bloomberg BNA. “The congressman supports the EPA’s Clean Power Plan.”

Laura Castillo, a spokeswoman for Hinojosa, said her boss “needed more time to review this given it is further outside the scope of his expertise.” A spokesperson for Clarke said she inadvertently did not sign onto the brief.

Others, including Nolan, took issue with components of the brief despite their overall support for the Obama administration's approach to combatting climate change.

“The congressman had some reservations about the brief and ultimately decided to pass on signing it,” Samantha Bisogno, a spokeswoman for Nolan, said.

Policy Preference for Some

The offices of Larsen and Sen. Tom Udall (D-N.M.) said the lawmakers had a policy of not signing onto amicus briefs.

Udall was one of a diverse group of Democratic senators not to sign onto the brief backing the EPA. That group included Sens. Joe Donnelly (Ind.), Heidi Heitkamp (N.D.), Joe Manchin (W.Va.), Claire McCaskill (Mo.), Barbara Mikulski (Md.), Chris Murphy (Conn.), Bill Nelson (Fla.), Jon Tester (Mont.) and Elizabeth Warren (Mass.).

Donnelly, Heitkamp and Manchin previously voted to nullify the Clean Power Plan through use of the Congressional Review Act in November 2015 .

Senate Minority Leader Harry Reid (D-Nev.) led the process of collecting support for the amicus brief in the chamber, but his office did not respond to requests for comment on whether all members of the Democratic caucus were contacted about signing it.

By comparison, 20 sitting Republican senators and 73 House Republicans did not sign a separate amicus brief urging the federal appeals court to overturn the Clean Power Plan .

‘No Real Surprises.'

Several environmental advocates told Bloomberg BNA they were not especially surprised by the Democrats not signing onto the amicus brief. David Goldston, director of government affairs for the Natural Resources Defense Council, said there were “no real surprises.”

“I’m not sure if there was time to ask everyone, and as you note, some don’t sign such briefs,” Goldston told Bloomberg BNA in an e-mail.

Others said the fact any Democrats would not join the effort to uphold the signature part of Obama's climate change efforts was disappointing.

“It's just inexcusable that any Democrats continue to cling to the myth that the coal jobs would just come back if only it weren't for those pesky meddling EPA regulations,” RL Miller, chairman of Climate Hawks Vote super PAC, told Bloomberg BNA.

To contact the reporter on this story: Anthony Adragna in Washington at aadragna@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

For More Information

A copy of the dear colleague letter urging House Democrats to sign onto the brief is available at http://src.bna.com/dVs.

A copy of the amicus brief from more than 200 lawmakers is available at http://1.usa.gov/1RCeKgU.